Warner Brothers sued for unauthorized use of Nyan Cat and Keyboard Cat

Two memes are 1) registered trademarks and 2) used in a new Scribblenauts game.

Warner Brothers is facing a federal lawsuit for using two feline-themed Internet memes in a video game without their creators' permission. The authors of "Keyboard Cat" and "Nyan Cat" have sued the media giant arguing that the game Scribblenauts, published by WB Games, infringes their copyrights and trademarks. The game's developer, 5th Cell, is also named in the lawsuit.

Keyboard Cat is a YouTube video uploaded in 2007. It shows a man's cat supposedly playing music on a keyboard. Nyan Cat is featured in an extremely irritating video that was uploaded to YouTube in 2011. As the complaint describes it, Nyan Cat is "a character with a cat's face and a body resembling a horizontal breakfast bar with pink frosting sprinkled with light red dots" that "flies across the screen, leaving a stream of exhaust in the form of a bright rainbow in its wake."

Both videos went viral and racked up tens of millions of downloads. The creators of the memes have bothregistered for trademark protection. At some point, 5th Cell allegedly added the characters to Scribblenauts, a series of games for the Nintendo DS and other platforms.

The two cat meme creators teamed up to sue Warner Brothers and 5th Cell. "Defendants have used 'Nyan Cat' and 'Keyboard Cat,' even identifying them by name, to promote and market their games, all without plaintiffs' permission and without any compensation to plaintiffs," they charge.

Warner Brothers is charged with both copyright and trademark infringement. The case will be litigated in the Central District of California, which includes Hollywood. We contacted Warner Brothers for comment but have not received a response.

Update: Christopher Torres, one of the plaintiffs, created the original Nyan Cat animation. However, he did not set the animation to music and upload it to YouTube, as the original version of this story implied. That was done by another individual. The story has been updated accordingly.

While it's nice to see companies like Warner on the other side of these types of lawsuits, I doubt the creators will be able to win.

For a trademark to be valid, the holder has to actively enforce their mark, whether or not the infringement is for profit. It wouldn't be very hard to find a lot of instances where people on the internet copied these memes, without the creators' permission, and with the creators not doing anything about it. WB's strategy will likely boil down to "They never enforced their trademark on these people, therefore they should lose it". And it will probably work.

While it's nice to see companies like Warner on the other side of these types of lawsuits, I doubt the creators will be able to win.

For a trademark to be valid, the holder has to actively enforce their mark, whether or not the infringement is for profit. It wouldn't be very hard to find a lot of instances where people on the internet copied these memes, without the creators' permission, and with the creators not doing anything about it. WB's strategy will likely boil down to "They never enforced their trademark on these people, therefore they should lose it". And it will probably work.

I could be wrong, though. I hope I am.

Does it matter that the video game was using the cats for profit, as opposed to most Internet uploaders who do it for fun?

Too bad they can't show it's a DMCA violation (or could they....?) then they'd be on the hook for like $200K per violation, or what ever wild and outragious damages that they can get. Whats good for the RIAA and all their bed-fellows out ought to be good enough for them too... just saying

I think what may decide this case is whether the Keyboard Cat guys got paid for the "Wonderful Pistachios" commercial that included a green-T-shirted Keyboard Cat. That would qualify as defending their mark.

IANAL, but nyan cat has been monetised by a truck load of different people, I don't believe he will win given the fact he never tried to stop those smaller people (play store has pages of nyan stuff) As for keyboard cat, no comment, but there is probably something there as well.

They can wait in line for the internet money they want more of (Go Southpark)

While it's nice to see companies like Warner on the other side of these types of lawsuits, I doubt the creators will be able to win.

For a trademark to be valid, the holder has to actively enforce their mark, whether or not the infringement is for profit. It wouldn't be very hard to find a lot of instances where people on the internet copied these memes, without the creators' permission, and with the creators not doing anything about it. WB's strategy will likely boil down to "They never enforced their trademark on these people, therefore they should lose it". And it will probably work.

I could be wrong, though. I hope I am.

Does it matter that the video game was using the cats for profit, as opposed to most Internet uploaders who do it for fun?

Believe it or not, no.

Defenses like fair use are given a lot more scrutiny if the use was for profit. But it's not a fair-use issue that WB will (likely) be bringing up, they're going to try to make the case the trademark was abandoned, which doesn't care about profits. Whenever a copyright/trademark holder sends a C&D to a mod-group making a total conversion mod is a an example of this.

Maybe the Kellogg Company (makers of Pop-Tarts) should sue Nyan Cat...no one thinks that's a generic "breakfast bar" making up Nyan Cat's body.

Toaster Pastries all pretty much look the same, so it could be a generic toaster pastry. image google search toaster pastry for some examples. Many will be Pop Tarts, but there will also be examples of non Pop Tart products that look similar.

Trademark law is blurry at the best of times. The only thing it really stops is a similar named product in the same market. Which isn't really the case here. There is no risk of product confusion. I think they definitely violated copyright though. You can't just take someone else's art and rip it off whole sale while preaching that no one else does it to you. And fortunately you can don't have to attack everyone that does it to keep the copyright.

Maybe the Kellogg Company (makers of Pop-Tarts) should sue Nyan Cat...no one thinks that's a generic "breakfast bar" making up Nyan Cat's body.

Kellogg's has a trademark on the name, not the concept of a poptart in general (or none of these would exist, otherwise). Pop-Tart Cat might have likely garnered the mega-company beatdown one would expect (especially if they tried selling it as an actual food product), a vague likeness of a breakfast pastry with a cat though?

It's also worth noting that Nyan Cat is actually in licensed videogames too.

But it's not a fair-use issue that WB will (likely) be bringing up, they're going to try to make the case the trademark was abandoned, which doesn't care about profits. Whenever a copyright/trademark holder sends a C&D to a mod-group making a total conversion mod is a an example of this.

I think you're conflating two issues: trademark and copyright. For trademark, you have to actively defend the trademark; for copyright, you don't.

However, I'm not sure if you can copyright the concept of a cat playing a piano, or of a cat made out of food. You can really only copyright a specific picture or video or prose. You can trademark them, though, but.... did these guys actually do that?

The person suing Warner Brothers, Christopher Torres, is the creator of the Nyan Cat gif only, not the creator of the Youtube video, which "stole" both the gif from Christopher Torres and the music from a Japanese video site. However, it was the Youtube video that brought the popularity, not the original gif.

Also, Christopher Torres calls the cat "Pop-Tart Cat" repeatedly, so it is somewhat ironic for him to be suing over trademark concerns.

Both keyboard cat and nyan cat have been referenced hundreds of times throughout various media, so I don't see how Scribblenauts is a different case, except for the fact that the publisher is not well liked on the internet.

However, I'm not sure if you can copyright the concept of a cat playing a piano, or of a cat made out of food. You can really only copyright a specific picture or video or prose. You can trademark them, though, but.... did these guys actually do that?

Its a short story, you should read it before posting. They not only registered for TM protection, warner brothers was so specific they referenced the name of the videos. That is pretty specific.

"Both videos went viral and racked up tens of millions of downloads. Their creators have both registered for trademark protection. At some point, 5th Cell allegedly added the characters to Scribblenauts, a series of games for the Nintendo DS and other platforms.

The two cat meme creators teamed up to sue Warner Brothers and 5th Cell. "Defendants have used 'Nyan Cat' and 'Keyboard Cat,' even identifying them by name, to promote and market their games, all without plaintiffs' permission and without any compensation to plaintiffs,"

While it's nice to see companies like Warner on the other side of these types of lawsuits, I doubt the creators will be able to win.

For a trademark to be valid, the holder has to actively enforce their mark, whether or not the infringement is for profit. It wouldn't be very hard to find a lot of instances where people on the internet copied these memes, without the creators' permission, and with the creators not doing anything about it. WB's strategy will likely boil down to "They never enforced their trademark on these people, therefore they should lose it". And it will probably work.

I could be wrong, though. I hope I am.

Copyright and Trademark are related but different.

The lawsuit appears to include both copyright and trademark claims, among others. IANAL

Timothy B. Lee / Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times.